Appeal No.	 EAT/653/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 September 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J A SCOULLER
MS B SWITZER

MRS S LINKISON-COLE	APPELLANT

THE GLENFIELD HOSPITAL NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR K McNERNEY
Legal Department
The Royal College of Nursing
Raven House
81 Clarendon Road
Leeds
LS2 9PJ	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing was to decide whether Mrs Linkison-Cole has an arguable point of law to make in an appeal against a decision of an Industrial Tribunal, which was unanimous, following a hearing at Leicester on 23rd March 1998.

	The applicant, Mrs Linkison-Cole, had complained that she had been unfairly dismissed by the Glenfield Hospital NHS Trust and she alleged that they had discriminated against her on the grounds of her sex. The Industrial Tribunal rejected the complaint of sex discrimination, but upheld her complaint of unfair dismissal. They further concluded that had a proper procedure been followed she only had a 50% chance of continuing in their employment and therefore any compensation that she was to receive was to be proportionately reduced. It appears from paragraph 12 of the Industrial Tribunal’s decision that the parties were able to come to terms on the amount of compensation that followed from the Industrial Tribunal’s award.

	The nature of the decision can be shortly stated. The applicant was first employed by the respondents on 24th May 1987 as a clinical nurse specialist for nutrition support. She was a senior nurse in the nursing hierarchy, being graded H. She worked alongside another nurse in the nutrition support team who had a more lowly grade, namely grade E. They were, I think, both part-timers. There came a time when the hospital was under financial pressure and it carefully reviewed its needs in various areas and one of the areas under scrutiny was the nutritional support team. The review panel originally concluded that there was no need for such a team, but after representations from doctors and further consultation, a decision was taken to retain the team in the sense of keeping in place one nursing post within the team. The duties of the nurse who was to be retained were specified and it was concluded that those duties could be carried out by a grade E nurse. The duties which had previously been carried out by the applicant, in so far as were are not going to be carried out by the grade E nurse, could be covered by other clinical staff. Accordingly, a decision was taken to retain the grade E nurse and to dismiss the applicant.

	In fact, she was notified of her dismissal on 18th August when she was on maternity leave which had commenced in March 1997. She had made arrangements with the hospital to have an extended maternity leave and to return sometime towards the end of 1997. Pursuant to the letter which was sent to her, her dismissal took effect from 31st August 1997, which was the effective date of termination.

	Attempts were made to see if there were other available posts for her which were suitable for somebody at her grade, but nothing that was suitable to her personally was found. Accordingly, her dismissal was affirmed, in the sense that the period during which the employers were prepared to look for alternative employment expired on 31st December 1997 without her having been found suitable alternative employment.

	The Industrial Tribunal concluded that up to the point when it was decided to retain the services of one nurse within the nutrition support team, nothing that the respondents had done could be criticised as being unfair. But the tribunal went on to say this:

“9. ... At that point, the assumption was made that the job had to be offered to the nurse on the lower grade. The applicant was not asked for her views and was not given the opportunity for herself to be considered, albeit on a lower grade. We are satisfied that the dismissal was unfair because of the lack of consultation at this stage.”

	At paragraph 11 of their decision the tribunal said this:

“11.     We are not satisfied that the failure to consider the applicant for the position of part-time nurse at grade E of her dismissal amounted to sex discrimination. In respect of the post at grade E, there was no difference in sex between the applicant and the employee who was retained. Her not being selected for the post cannot, therefore, have been on the ground of sex. As to her dismissal, we are not satisfied that it arose because she was absent on maternity leave when the process of re-organisation was taking place. Further, we are not prepared to draw the inference that her dismissal was on the basis of her sex. Her claim of sex discrimination therefore fails.”

	In support of the appeal, Mr McNerney on behalf of the appellant, effectively conceded that none of the matters raised in the Notice of Appeal themselves were of any particular merit save for a point which he wished to argue which arose of the way the case was presented to the Industrial Tribunal. The appellant’s Originating Application was amended to say this:

“Whilst on maternity leave the Respondents came to the conclusion that the Applicant’s job function could be performed without. The Applicant’s submit that but for her absence on maternity leave they would not have arrived at this conclusion and that because maternity leave is sex specific this is discrimination contrary to the Sex Discrimination Act.”

	It was Mr McNerney’s submission to us that in paragraph 11 of their decision the Industrial Tribunal had drawn a false distinction between the selection of the post to become redundant and the dismissal of the applicant. The argument, as I understand it, goes at follows. In support of their decision to abolish the more senior of the two nursing posts, the respondents relied on the fact, partly, that it was shown, by reason of her absence, that the grade H nurse was not a necessary function for the proper attainment of the objectives of the nutrition support team. The absence of the grade H nurse, that is the applicant, was because she was on maternity leave. Therefore, the fact that she was on maternity leave played some part in the decision which was arrived at and because maternity leave is only taken by women, this was discrimination which was sex specific and not requiring a comparator.

	It seems to us that the Industrial Tribunal have approached the question of discrimination in an entirely correct and sensible manner. The question that they had to ask themselves is whether the fact that the applicant was a woman and on maternity leave played any part in the decision which was taken to remove her from employment. They were of the view that the fact that she was on maternity leave played no part in the decision which was taken. It is a very remote connection as alleged in the Originating Application, too remote we think to merit any serious consideration. It was not because she was on maternity leave that she was dismissed. The employers will have taken a decision as to whether her post was required or not, not solely by reference to whether she was away and the work continued satisfactorily, but by reference to normal criteria. The fact that she was away and that nonetheless the work was proceeding satisfactorily was a factor which they were entitled to take into account, but that does not mean that the reason why she was away from work at that time played any part in the decision which was taken by the employers. It is a remote connection and the tribunal were fully entitled in their own judgment to form the view that the fact that she was on maternity leave did not affect the outcome.

	We are not persuaded that there is any arguable point of law raised by the appellant in this case. Accordingly, the appeal must be dismissed.